The answers to some frequently asked questions appear below. More questions and answers will be added throughout 2009.
1. Meaning of the term 'worker'
i) Q: Why change the term employee to worker?
A: The term worker better captures the broader scope of people who have work-like relationships in the work place or undertaking.
ii) Q: I am having a person on work experience placement here soon. Are they covered by the new Act?
A: Yes. The new Act also covers people who are on work experience placement.
iii) Q: Who else is covered by the Work Safety Act 2008?
A: Apprentices, Independent contractors, outworkers and volunteers.
iv) Q: What is an Outworker?
A: Section 3 of the Outworkers (Improved Protection) Act 2003 of Victoria defines outworkers as people working in the clothing industry including packing, processing, finishing or working on any type of garment or apparel.
v) Q: Why are volunteers covered by the new Act?
A: The Act has been extended to better capture contemporary work arrangements that go beyond the bounds of the traditional employment relationship. This includes coverage of all people who have a worker-like relationship. If volunteers work in employment-like settings they are covered by the new Act. Volunteers were also mentioned in previous ACT OHS legislation.
vi) Q: Don’t workers have to be paid to be covered by Occupational Health and Safety laws?
A: Not necessarily. A worker is an individual who carries out work in relation to a business or other undertaking under an arrangement with the person conducting that business or undertaking. This can be for reward or non-reward; paid or non-paid.
vii) Q: Are visitors to a workplace covered?
A: Under the increased scope and coverage of safety duties of the Act visitors to the workplace will also be covered.
viii) Q: Volunteers are now included as ‘workers’. Does this mean they are now covered for workers’ compensation purposes?
A: There is no relationship between the Work Safety Act 2008 and the ACT’s workers’ compensation legislation. In other words, changes to the definition of worker in the Work Safety Act do not affect in any way a person’s entitlement (or lack of entitlement) to workers’ compensation.
2. Risk management
i) Q: How is risk defined in the Work Safety Act 2008?
A: The Act defines risk as exposure to the chance of injury or loss or possible impact on wellbeing of workers from the failure to provide adequate facilities.
ii) Q: Where is risk defined in the Act?
A: Risk is defined in Section 8.
iii) Q: What is an example of risk?
A: A simple example of risk which is used in the Act is a possible broken arm due to a failure to provide adequate safety rails.
iv) Q: What does manages risk actually mean?
A: Managing risk means that reasonably practicable steps must be taken to identify and eliminate possible risks. It is understood that it is not always possible to eliminate all risks. If this is the case then risks must be minimised. It is also necessary to inform anyone else who has a safety duty about the possible risks.
v) Q: Where do I find information about risk management in the Act?
A: Section 14 of the Work Safety Act 2008 deals with the meaning of 'manages risk'.
vi) Q: What does the term reasonably practicable really mean?
A: Australian courts and Work Safety legislation jointly interpret the notion of what is reasonably practicable for employers to carry out to proactively and positively identify, assess and address risks.
In essence, the duty holder must weigh up the risk of causing harm to a worker against the cost, time and trouble of removing or reducing that risk.
Section 15 of the Act outlines steps that must be considered in this regard.
3. Worker Consultation
i) Q: I employ less than 10 employees. Do I still have a duty to consult?
A: Yes. Under Section 52 of the old Act small employers were not affected. However, under Section 47(1) of the new Act has a duty to consult, if reasonably practicable, with the employer's workers to allow the workers to contribute to matters directly affecting their work safety.
ii) Q: What is a Worker Consultation Unit?
A: A Worker Consultation Unit is simply a group representing all of the employer's workers to allow them to contribute to matters directly affecting their work safety.
iii) Q: Has the Worker Consultation Unit replaced Health and Safety Representatives and are their functions still the same?
A: No, Health and Safety Representatives are still in the new act and their functions are outlined in Section 58.
iv) Q: I employ several workers at several different workplaces. Can they be represented by the same Worker Consultation Unit?
A: Yes. Under Section 48 (3) (a) a Worker Consultation Unit may consist of workers of an employer at 1 or more workplaces.
v) Q: Can workers of more than one employers at more than one workplace be represented by the same Worker Consultation Unit?
A: Yes! Under Section 48 (3) (b) a Worker Consultation Unit may consist of workers of more than one employers at more than one workplace.
vi) Q: How can I establish a Worker Consultation Unit?
A: Section 48 of the Act outlines that a Worker Consultation Unit must be established in a way that best and most conveniently allows the work safety interests of the workers in the unit to be represented and safeguarded.
vii) Q: What do I have to think about when I’m establishing a Worker Consultation Unit?
A: Section 49 states the in deciding the way that the worker consultation unit is established, the employer must consider the following in relation to the employer's workers:
* The number and grouping of workers
* Workers' working hours, including the representation of workers on shift work
* The pattern of work of workers, including the representation of part-time, casual, seasonal or short-term workers
* The geographic location of workplaces, including any dispersed locations, home-based work or transport work
* The nature of different kinds of work carried out by workers, work arrangements and the levels of responsibility
* Workers' characteristics, including gender, ethnicity, age and special needs
* The hazards or risks to work safety at the workplace
* The interaction of workers with the workers of other employers.
viii) Q: Can I change the Worker Consultation Unit if I want to and how is it reviewed?
A: Yes, you are able to make changes to the unit I the interest of work safety and this is outlined in Section 51. An employer must review the effectiveness of the unit and this process is considered in Section 52.
ix) Q: Do I have to keep records about the unit?
A: The employer must keep accurate records the following aspects:
* How the unit was established
* Its activities
* Changes and reviews
Failure to do so may result in a penalty of 30 penalty units.
4. Private prosecution of offences
i) Q: What section of the Act deals with Private prosecution of offences?
A: Section 218.
ii) Q: Was the ability for private prosecution available under the old Act?
A: No such provision was available under the old Act.
iii) Q: What abilities are granted regarding private prosecutions and to whom?
A: The right of private prosecution is given and it is given to unions and employer organisations.
iv) Q: Is this a new idea?
A: This ability aligns work safety legislation to a broader position under Australian Common Law. This ability has also been available in the jurisdiction of New South Wales for some time.
v) Q: Who can commence a private prosecution?
A: A prosecution may only be commenced with the written consent of the secretary of a registered union or the chief executive of a registered employer organisation.
vi) Q: What role does the Director of Public Prosecutions play in these matters?
A: The Director of Public Prosecutions has the right to intervene and take over or discontinue a private prosecution at any time.
vii) Q: Are Industrial Manslaughter prosecutions contained in the new Act?
A: No. This is an unrelated method of prosecution. Prosecutions for Industrial Manslaughter offences are contained in a separate piece of legislation: Part 2A of the Crimes Act 1900.
5. Workers’ right to refuse
i) Q: Which area of the Work Safety Act 2008 deals with this matter?
A: Section 42 (1) deals with workers’ rights to refuse potentially dangerous work.
ii) Q: When do workers have the right to refuse to do work?
A: Workers have this right if they have a reasonable belief that the work involves a significant risk to work safety.
iii) Q: What if they just want to get out of work?
A: Hopefully this will not be the case! The key issue, as stated in the legislation at Section 42 (1) (b), is that workers must have reasonable belief that the work involves a significant risk to their safety. This belief should be based on experience and a sound risk assessment. It should be discernable whether a genuine and significant risk exists through consultation between workers and employers. There is also a provision for dispute resolution embedded in the new Act. A refusal to carry out work will be clearer to assess if an emergency procedure has been carried out which is also stipulated in Section 42 (1) (a).
iv) Q: Have there been any precedents about Workers’ right to refuse in Australian courts?
A: Yes. In CFMEU v AIG (2002, Queensland) it was held that for this purpose a reasonable concern must be looked at objectively, taking into account all the circumstances. Imminent risk means that a sense of immediacy needs to exist. This case also noted that workers need to keep themselves reasonably available to do alternate work. They cannot withdraw their labour so that they put themselves beyond the ability of the employer to direct the employees to do alternative work which is safe. Foreseeable risk is also central to this concept.
v) Q: I am the Boss. Do I have the right to request that they carry out other work?
A: Yes. If a worker refuses to do work believed to be unsafe, a person in control of a workplace may require workers to do alternative work. This is stipulated in Section 42 (2).
vi) Q: Did the old Act have this provision?
A: No. The Occupational Health and Safety Act 1989 had no such provision.
vii) Q: Is this a new idea and do any other jurisdictions have such a provision?
A: No, this is not a new idea. This provision has been contained in Queensland legislation since 1999. Section 241 of the Industrial Relations Act 1999 states that workers have the right to refuse to work if imminent health or safety risk [if] the refusal is based on a reasonable concern by the employee about an imminent risk to his or her health or safety.
6. Strict liability & absolute liability offences
i) Q: What are strict liability and absolute liability offences?
A: It could be said that these offences are the most serious and have received careful consideration during the development of the Act. In layman’s terms you can think about it as there is a ‘no buts about it’ approach with these offences.
ii) Q: In legal terms what are the considerations of strict liability offences?
A: A failure to comply with ‘strict liability’ provisions is an offence involving the following:
* there are no ‘fault’ elements for any of the physical elements of the offence the act or the failure to act is sufficient to make the person liable
* it would not matter if the person knows or intended to have committed the offence
* these offences have the specific defence of mistake of fact
iii) Q: What are the Strict liability offences in the Work Safety Act 2008?
A: The Act has strict liability offences in clauses 30, 31, 32, 33, 34, 39, 41, 47, 48, 53, 55, 70, 72, 88, 89, 121, 122, 128, 135, 138, 144, 150, 159 and 181.
iv) Q: What is a penalty unit ?
A: One penalty unit equals $100 if the person charged is an individual or $500 in the case of corporations.
v) Q: Which section attracts the greatest penalty?
A: Section 34 - Failure to comply with safety duty—recklessly cause serious harm carries a Maximum penalty: 2000 penalty units, imprisonment for 7 years or both.
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